Legal Representation for Detained Asylum Seekers: Making the Difference Between Life and Death

By Michele R. Pistone, assistant professor of law and director of clinical programs at Villanova University School of Law and board member of Pennsylvania Immigration Resource Center (PIRC), a nonprofit organization that provides legal assistance to detained immigrants in Pennsylvania

As any school child will tell you, Pennsylvania was founded in part by William Penn as a refuge for Quakers who were fleeing religious persecution in Europe. Soon thereafter, Pennsylvania's reputation as a refuge for religious and political refugees grew. Successive groups of religious minorities, including Mennonites, Moravians, Schwenkfelders, Inspirationalists and Amish, also sought refuge in Pennsylvania.

Asylum seekers are in custody in Pennsylvania's county jails.
Today, the situation for refugees fleeing religious, political and other forms of persecution is radically different than it was during Pennsylvania's early days. Many asylum seekers still end up in Pennsylvania, but for different reasons than in centuries past. Today, many immigrants who are taken into Immigration and Naturalization Service (INS) custody are detained in Pennsylvania county jails, which rent bed space to the INS.

Presently the York and Berks county jail systems are among the ten largest county jail facilities used by the INS across the United States. More than 1,000 immigrants are detained pursuant to INS direction in jails located in those two counties alone. The INS also rents bed space in other county jails across Pennsylvania, including Snyder County Jail, Pike County Jail, Carbon County Correctional Facility and Montgomery County Jail.

According to a recent report by the Pennsylvania Institutional Law Project, more than 1,900 noncitizens are in custody in county jails in our state. However, save for a handful of immigration lawyers who provide free legal representation to immigrants, most immigration practitioners are based in Philadelphia, hundreds of miles away from the jails in which immigrants are detained. As a result, 70 - 80 percent of detained immigrants do not obtain legal help with their cases. Because they are detained, immigrants often are invisible to the local bars. This invisibility is costly. Studies show that the likelihood of success in immigration proceedings increases 4-6 times when the individual is represented by counsel.

The lack of success by unrepresented immigrants is understandable given that asylum seekers often do not speak English, lack knowledge of our legal standards and culture and, aside from the stress of being held in detention, often suffer from trauma-related illnesses that make it difficult for them to represent themselves. Thus, in the case of asylum seekers and others fleeing persecution in their home countries, the lack of legal representation can mean the difference between life in the United States and death, torture or other forms of persecution if they are returned to their home country.

What is asylum protection?
Asylum is an immigration status that the U.S. government confers on people who have fled persecution or have a well-founded fear of persecution in their home countries because of who they are (their race or nationality), what they believe (their religion or political opinion, or their social group. By definition, asylum seekers are fleeing government oppression, so they usually arrive without proper documentation that would permit them to enter legally. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, when an immigrant arrives at an airport or the border without proper documentation, the INS is required to take them into custody. Asylum applicants without documentation usually are held in detention pending the adjudication of their asylum claim before an administrative law judge in immigration court. Under this system, asylum seekers can spend months in Pennsylvania county jails awaiting their hearings. The existence of these detainees, however, is largely invisible to the local community and bar.

At Villanova University School of Law, we are reaching out to that otherwise invisible community. I direct a legal clinic in which Villanova law students obtain course credit while representing noncitizens detained in York and Berks county jails. The law students travel weekly to the jails to interview their clients and at the end of the semester present their clients' cases at hearings before the immigration court. The students report that it is one of the most rewarding experiences at law school.

Consider pro bono representation of detained asylum seekers.
As it is for the law school students, the pro bono representation of an asylum seeker also can be one of the most rewarding endeavors for lawyers. Without legal representation, asylum seekers face substantial obstacles to establishing eligibility for protection. Representation of an asylum seeker is therefore one of those occasions in which a lawyer's presence in a case truly saves someone's life.

As an added benefit, the cases are exciting and offer opportunities for lawyers to hone interviewing, drafting, research and litigation skills. Interviewing a political activist or other refugee from a foreign country involves learning the client's life story, learning about his or her beliefs and how your client fought for those beliefs, and learning what made him or her leave behind family, friends, and livelihood to seek safety in the United States. After learning the story, the lawyer then assists his/her client in preparing a written statement detailing the facts that support the grant of asylum protection and prepares an asylum application. The application involves telling the client's story in a way that supports the grounds for protection and presenting the legal theory to the court in the form of a brief or memorandum of law. This can involve substantial creativity. The lawyer also collects background information about relevant human rights conditions in the client's home country to submit to the court as corroboration of the client's claim, and if available, information corroborating the particular facts of a case. There also are opportunities to work with expert witnesses, such as political scientists, who can be asked to testify about the country conditions, or mental health or torture experts, who can testify about mental and physical signs of abuse or trauma that the client exhibits. Finally, at the hearing in immigration court the lawyer can hone trial skills such as direct and cross examination, preparation of opening and closing statements and the introduction of documentary evidence.

Through grants by local county bar foundations and the American Bar Association, three nonprofit organizations - Hebrew Immigrant Aid Society (HIAS); Nationalities Service Center; and Pennsylvania Immigration Resource Center (PIRC) - collaborate to provide legal resources and representation to detained asylum seekers. But, these organizations do not have sufficient staff or resources to assist everyone who needs help. This is where pro bono lawyers can help. Members of the Pennsylvania bar can volunteer their time to these organizations to assist in representing detained asylum seekers and other immigrants.

I told my law students after helping our clients gain asylum protection in the United States this fall that the asylum process represents America at its best. After the September 11th attack on the United States and its values, it is particularly rewarding to play a role in obtaining protection for someone who has fled to the United States precisely because of those values, such as religious and political freedom.

For more information on becoming involved in assisting detained asylum seekers, contact Michele Pistone, Villanova University School of Law, 299 North Spring Mill Road, Villanova, PA 19085, Ph: 610-519-5786.