Immigrants to the U.S. who are convicted of a crime may face detention and deportation by federal authorities. Few get a meaningful chance to challenge the government in such circumstances—around 85 percent of those who are detained don't even have a lawyer. But thanks to the efforts of Kelli Barton '10, Julia Dietz '10, and Alisa Wellek '10, three students in the Law School's Immigrant Rights Clinic (IRC), a lawful permanent resident from Yemen is resuming his normal life after months of detention.

Professor of Clinical Law Nancy Morawetz, who supervised the students, says that when the clinic initially took the case last fall, it seemed it would be narrowly focused and resolved relatively fast. That was not to be. The IRC's client (whose identity the clinic is keeping confidential), was actually granted political asylum here almost nine years ago. But he recently served five months in prison after  pleading guilty to involvement in a scheme to traffic contraband cigarettes. Based on that, immigration authorities took him into detention the moment he left prison and began preparing to deport him. Barton, Dietz, and Wellek argued to an immigration court judge that his offense did not offer grounds for detention or deportation. That hinged on whether he was guilty of an aggravated felony, as the government argued, or a lesser charge, as the IRC maintained; the answer to that question, in turn, depended on the terms of his plea agreement.

While the judge initially sided with the government, he said he would reconsider if the IRC legal team could get a letter from the prosecutor in the cigarette case supporting their client. In the meantime, Barton, Dietz and Wellek began preparing a second asylum case in the event the judge stuck with his decision that their client was deportable. That is an enormous undertaking, and involved round-the-clock work by the students. Because the judge had ruled that the conviction was an aggravated felony, the team had to prepare a case that met a more demanding legal standard than was required for the initial grant of asylum. Among other things, they prepared an affidavit with more than 50 exhibits documenting the political situation in Yemen and why their client could face persecution there. Pursuing yet another tack, they also filed a habeas petition in federal district court in New York. While the prosecutor of the cigarette case told the IRC team that their interpretation of the plea agreement was correct, it took three months before they received a letter stating that. Once they obtained the letter, the government agreed that their client could be released on bond.  He was finally released on March 10 after more than six months in detention—at a cost to taxpayers, Morawetz notes, of more than $30,000.

The students’ work was still not over since the judge had not decided whether the client was deportable, and would not promise to rule on that before the asylum hearing. So for two weeks the team continued to work with their client and an expert to process his asylum claim. But when they finally returned to court for a hearing, the judge said the prosecutor’s letter had persuaded him their client was not deportable after all, and he terminated the proceedings.

Asked about their experience, Barton, Dietz and Wellek offered a collective response: "It is shocking how little liberty is valued in this system.  Nobody stops to determine first whether somebody should be detained before locking them up and practically throwing away the key." As for the IRC case, they said, "It was difficult knowing that our client had been languishing in detention for almost seven months, when legally he should never have been in deportation proceedings in the first place. One thing we kept talking about is that it took three of us devoting enormous amounts of time and energy for months to free him." They added, "It's unthinkable how many people are in situations similar to our client's—wrongly facing deportation to a country they haven't known in decades, where their lives may be in danger."

The government has 30 days in which to file an appeal.

Posted April 2, 2010