Teaching Undergraduate Forced Migration Studies Through a Community-based Law and Policy Clinic During Covid: What Are the Crises and Opportunities?

Abstract

This is a story of how we sustained, through 2020, 2021, and now into 2022, a community-based law clinic where teachers and students, combining their relative subversive potentials, created a laboratory in which to experiment with ways for lawyers to work in impacted communities in an organizer’s voice. It is also a story of how the tragic opportunities created by a worldwide pandemic have led us to a still dimly envisioned model of resistance in communities constructed by legal constraints on migration in the age of Covid-19.

This is a story of how we sustained, through 2020, 2021, and now into 2022, a community-based law clinic where teachers and students, combining their relative subversive potentials, created a laboratory in which to experiment with ways for lawyers to work in impacted communities in an organizer’s voice. It is also a story of how the tragic opportunities created by a worldwide pandemic have led us to a still dimly envisioned model of resistance in communities constructed by legal constraints on migration in the age of Covid-19.

Recently, after reflecting on my own work and after interviewing many leading movement lawyers involved in immigrant rights work, I wrote that differences between often well-meaning lawyers and effective organizers and activists might boil down to (1) differences in storytelling conventions, (2) time frames, and (3) risk aversion.¹ First, lawyers tell stories about the peculiarity of a client’s situation in an effort to convince legal decision makers that granting their client the relief they seek will not impinge on the prevailing social order, an order in which that legal decision maker sits on top. Although lawyering for refugees lends itself to connecting with a wider world of rights and oppression, more than most areas of law²—and that is exactly the reason I got into this line of work originally—the Refugee Convention and Protocol and U.S. refugee law insist on proof that individuals were targeted for their peculiar characteristics or histories, and that they are at greater risk because of those things than the rest of the population of even the most dangerous states. Organizers, by contrast, motivate affected communities to tell stories to show that each individual’s apparently idiosyncratic problems are deeply connected to the arc of the whole world, and that there is no way to relieve their individual distress without disrupting the prevailing order. Second, lawyers are uncomfortable with engaging in immediate action in the service of the lasting change that organizers demand. Last, lawyers find safety in “no,” “don’t,” “try not to.”³ Organizers spread a “what’s next” and “yes, and” attitude within affected communities.

In 2013, I began teaching forced migration to undergraduate students at Brandeis University, in a class called Immigration and Human Rights, which focused on anticipated immigration reforms after Barack Obama’s reelection, and how those reforms might impact forced migrations and how we might address future migrations due to changing climate and changing contexts. I found that students were surprisingly adept at picking up the intricate details and vagaries of notoriously complex U.S. immigration law. They seemed to enjoy migration history, and they joyfully struggled with defining a political philosophy of borders and exclusion, assimilation, segregation or integration, expulsion or accommodation. These students produced amazing projects, which we gathered each year into anthologies about the state of forced migration in 2013, 2014, and 2015. Projects ranged from the practical (guides for families facing deportation, legal briefs, and proposed regulations for gendered asylum) to the imaginative (dance, photo arrays comprising immigrant narratives, podcasts of raids, refugee song lists) to the scholarly (histories of migration in the Maghreb, recent migrations of non-Jews in Israel, the Rohingya crisis in real time) to the awe-inspiring (coordinating a college curriculum for young people in Za’atari refugee camp).

I usually mentioned somewhere along the way that immigration is one of the few areas in which lawyers’ monopoly on access to justice was incomplete. Non-lawyers could represent a migrant in proceedings, trials, and appeals, and what limited research existed confirmed my experience that non-lawyers were at least as good at presenting a refugee’s story as lawyers.⁴ We wondered aloud about the adjacent possibility of refugees translating their own stories (or the stories of other refugees, as it is difficult to vouch for one’s own earnest pain) to teach powerholders about forced migrations.

Still, the course felt incomplete. Although end-of-year evaluations were good, there was an underlying curriculum upon which the course barely touched. I tried to show students how on-the-books law differed from refugee law-in-action, how human rights instruments capture neither the work of the institutions and roles they create nor the meaning of human rights documents to the oppressed, the marginalized, the hungry, or the scared. I showed documentaries of authentic law-making, like Well-Founded Fear (2000) and The Law in These Parts (2011). We read refugee stories and poetry, and we devoured social media. Still students were unprepared to understand, much less to intervene in, issues of forced global migration in the twenty-first century. They lacked the necessary skills to create change in what would soon be a growing, and likely overwhelming, crisis. They had little sense of how refugee identities arose within legal contexts.

On the early morning of November 9, 2016, my phone rang incessantly. It was OK. I was up. You probably were as well. Many of my calls were from students from my Immigration and Human Rights Class. Donald Trump had been elected president of the United States on a platform of nativist populism: students wanted to know what I planned to do. They did not wait for me to respond. They reminded me that I had said that one need not be a lawyer to represent immigrants and that authentic, competent, and empathetic representation might create a refugee law responsive to the horrors and hopes of forced migration. Sure, I said that, but…

Students in the class and others from prior semesters joined in and persisted. I did not even dimly envision the impacts an undergraduate-run immigration law clinic would have on the community, but I fell in line with students’ syllogistic reasoning, which went more or less like this:

• 1. with a boldly nativist president, we have to do something;

• 2. a community-based immigration law clinic is something; and

• 3. therefore, we have to construct a community-based immigration law clinic.

For my part, I was excited about the prospect of experimenting in breaking down lawyers’ monopoly on access to justice, which largely abandons refugees and asylum seekers to face down immigration systems without representation.⁵ Would students rise to the challenge of immigration lawyering? I imagined that combining my crusty supervision and ideas of movement lawyering in immigrant communities with fresh faces and unconstrained questions might produce creative persistence in finding better ways of working with forced migrants.

I had come to Brandeis after three decades of supervising praxis in clinical programs in U.S. law schools, European undergraduate law programs, and Tribal colleges. I knew that a clinical program could teach skills that could not easily be learned in classroom settings—even employing well-constructed simulations. Examples might include ends-means thinking, information acquisition analysis, contingency planning, and decision-making under high uncertainty.⁶ The program could also teach familiar lawyering and organizing skills like interviewing, negotiating counseling, fact investigation and manipulation, trial and appellate skills, listening, conducting meetings, public advocacy and popular education, but also agency responsibility, problem-solving, collaboration, cross-cultural awareness, dealing with and leveraging emotions and coping with changing artifacts, testimonies, documentation, social values and expectations, creative relationship-building and advocacy, dealing with, and in, authority, learning how to learn from experience.⁷ I was sure that immersing students in communities constructed by forced migrants in the shadow of law and public institutions would provide the texts for learning law-in-action dynamics and how migrant communities relate to emergent legalities, and enable learning refugee law as the friction produced by the interaction of doctrines, roles, and personalities in spaces created by socio-legal institutions.

By the end of the Fall 2016 semester, we created a nonprofit corporation, gave it the ungainly and absurdly clumsy name The Right to Immigration Institute (TRII), and applied for I.R.S. 501(c)(3) charitable corporation status, the prerequisites for becoming a Department of Justice (DOJ) recognized organization that could host DOJ-accredited immigration representatives.

We decided to tackle forced migration in the form of asylum, withholding of removal, relief under the Convention Against Torture (CAT), as well as U and T visas (for survivors of violent crime in the United States and trafficking, respectively) as the areas of greatest unaddressed need in the community. As our location of activism, we chose Waltham, MA, historically a mill town and home to many groups of immigrants. By the time of our uninvited arrival, the city was home to large populations that had fled from Uganda and Guatemala, and lesser numbers of migrants from Honduras, El Salvador, Cameroon, Nigeria, Tanzania, and other countries.

Asylum law in the United States is largely summarized (and here paraphrased) in the law’s definition of a refugee as one who is outside her country of origin, and who fears returning to that country because of past persecution or a well-founded fear of future persecution based on race, religion, nationality, political opinion, or membership in a particular social group.⁸ Asylum remains one of the few opportunities for status and a viable road to a green card and citizenship for a migrant who entered without status, or lost status by reason of overstaying or violating a visa, and who has no family or valued employment prospects in the United States.⁹ Asylum takes long hours of research to document harms to the applicant and similarly situated individuals, to flesh out a story that rings true to a legal decision maker, meets the elements of the refugee definition set out above, and seems similar enough to other accepted claims without being too similar. Undergraduate students seemed well-prepared for such research. Asylum (broadly defined here to include CAT relief and withholding of removal) requires a long, intense relationship with traumatized and skeptical individuals who initially saw us as part of an established political class that had authorized their persecution. In our more honest moments, we had to admit they were not entirely wrong. We had work to do.

We began the process by surveying community leaders, clergy, teachers, and social service agencies. We sat uninvited on obvious benches and rode opportune bus routes that connected large apartment complexes. We talked to other immigrant advocacy organizations, legal services providers, and law schools in the state (that turned out badly; more on that below). And we sat each week in a rented room at the town library to offer our help. No one came. Not even lost readers looking for books.

Meanwhile, we were working to secure DOJ recognition for the project and DOJ accreditation for three students who decided to be the first to take this plunge. DOJ accreditation comes in two flavors: partial and full. Partial accreditation allows for signing applications and appearing as counsel at allegedly non-adversarial asylum interviews. Full accreditation allows one to conduct Immigration Court trials and appeals to the Board of Immigration Appeals [BIA]. We decided to first try for partial accreditation for the three pioneers. As mentioned above, initial outreach to local immigration advocacy nonprofits and law schools was less than satisfying. The very idea of students representing irregular migrants in asylum proceedings was met with fierce opposition and rank insult. Upon gentle interrogation, it became clear that even low-paid, but high-status, nonprofit advocates despaired that our students had not been to law school, even as more than one law school clinic director claimed their students were not qualified to handle asylum claims. We then approached CLINIC, a nonprofit arm of Catholic Charities, who offer, and charge for, helping organizations become DOJ-recognized. After several meetings and months of delay, CLINIC turned us down as well, without explanation.

Undeterred, we applied for recognition from the DOJ’s EOIR Office of Legal Access Programs. TRII was recognized and advocates accredited in February 2018, and that same month TRII moved in to share offices with WATCH-CDC, a local nonprofit that provided housing and public benefits advocacy and English-language instruction to a largely impoverished immigrant community. For a below-nominal monthly rent, WATCH lent us its copier, reams of paper (asylum applications average 1100–1800 pages), post-it notes, a phone, Internet service, a filing cabinet, and their hold on the trust of Waltham’s immigrant communities, which WATCH had earned over 30 years of service in the community.

Building on a platform of experimentation and assessment, TRII continued to grow over the next two years. We developed a student training presented in a classroom with the idea of developing a common vocabulary for the praxis of the TRII office. The initial TRII pre-praxis classes were held at night without compensation or credits, or even any university recognition for students, who both taught and listened, as a beta test of a proposal for a three-course portfolio to be run over the summer as a full-time experience in practice. The three courses, integrated, but nominally identified, for registration as Immigration and Human Rights, Conflict Analysis and Resolution, and Practicum, indeed ran that summer, providing hard-money funding sufficient to run the program year-round as well as trainees destined to become the next generation of forced migration advocates.¹⁰

Through the following year, TRII student-advocates successfully provided high-quality free representation and advice to poor migrants and became a valued resource in the community. They provided training and know-your-rights sessions, while assisting me in our adjacent human rights portfolio, consisting mostly of housing, employment, and civil rights disputes. In doing so, TRII gained the trust of diverse migrant communities, through persistent, creative, and mostly successful immigration representation and through learning more about and supporting those communities’ priorities through activism and advocacy.

Thus, the TRII experiment proved its early critics wrong. First, it showed that students could provide competent legal representation in asylum, and that they possessed the motivation, assertiveness in the face of power, and persistence to continue doing so. Together, students and supervisors developed a case load equivalent to the small refugee movement law and policy shop we had become—about 150 cases, not including brief service and advice, mostly involving referrals to providers for unforced migration applications and safety planning for those whose situations did not provide a path to legalization under United States immigration law.¹¹ TRII also partnered with a unique Medical and Psychological-Legal-Educational Partnership called the Wrap-Around program, designed to provide holistic services to newly arrived forced migrant families with the specific goals of improving the high school graduation rates of migrant youth.

Second, TRII demonstrated the benefit of collaborations among experienced attorneys, committed students, and impacted communities. This synergy became less a welcome luxury and more an absolute necessity in the world in which TRII developed. As soon as TRII started, the already-hostile ground of immigration enforcement began to change, tectonically at first, but then as a constant humming of the churn of executive orders, appellate decisions, statutes, institutions, roles, and personalities made the U.S. and the world a far more dangerous and uncertain sanctuary for forced migrants. These changes were so frequent, surprising, and consequential that expert trackers became a necessity.¹²

In response, students engaged in regulatory comment-making, urging political action and participating as adjuncts in large-scale issue litigation, as well as working individual cases and broad causes. As supervisors and practitioners, we had to adjust our commitment to non-directive instruction, a dilemma with which law school clinicians had openly struggled. In a clinical legal studies setting, nondirective teaching means not giving students easy answers to questions, instead encouraging students search for answers with teachers employing guided reflection to help the students generalize to other problem-solving challenges.¹³ Nondirective teaching in this setting also implies that the teacher is not telling students what cases to take or directing students what to do in order to represent clients. Rather, such teaching encourages student agency and creative problem-solving (and creating conditions for students to safely fail, where possible), guiding students to consider possible opportunities and constraints in problem-solving, and working with students, clients, and collaborators to generalize from the experience. Our accommodation was for teachers to use nondirective instruction where time constraints made it possible, being transparent about our thought processes, research activities, and decision-making when time was more pressing—and being unapologetically directive when time was short and clients’ interests were at stake.

During the next summer, we expanded the course to the Waltham community, and held training sessions for community leaders, most of whom turned out to be former or current local politicians, clergy, K-12 teachers, and college professors. After starting as a 12-credit Brandeis summer intensive course, we are now working from a model in which a few Brandeis students who have, or are taking, the Immigration and Human Rights course get two additional “practicum” credits (and the instructor $250 per student per semester), which represents weak acknowledgment of the rich intellectual challenges that TRII students confront daily. A proposal for a stand-alone six-credit practicum course is now under consideration. In addition, we now offer training and opportunities for DOJ accreditation for community leaders, refugees, and other forced migrants.

Most domestic colleges realized the impacts of Covid-19 during March 2020. The path for my stand-up classes, such as Immigration and Human Rights, seemed clear enough: students would disperse to their homes and class would reconvene online thereafter, likely for the rest of the year. But what could a community-based social science laboratory and movement law shop like TRII do? We had worked too long and too hard to overcome Brandeis’ reputation for dilettantism; instead, TRII had secured an essential place in the community because of its commitment to building relationships as the medium of social change. Moreover, we had clients and cases in courts that could not be abandoned. A few students stayed on to staff the office. The majority, forced to return to faraway homes, would relearn our ways of practice at a distance.

We would need space. It would no longer be possible to share space with another busy social service agency. So we secured a space next to a homeless shelter and a few doors down from a substance treatment center and programs for at-risk juveniles. We were able to maintain our strong community presence. This became increasingly critical as other immigrant legal services agencies in the area went completely online, offering only brief service and advice, forsook intakes altogether, or shut their doors forever. But most student planning and reflection sessions (and soon court hearings) would be by Zoom.

We struggled to negotiate trusting relationships by WhatsApp and to level disparities in Internet access, devices, and safe spaces from which to connect with us, but, at the same time, we leveraged opportunities to unobtrusively observe student-client interactions; to access off-screen notes, hints, and gestures; and to create openings with clients who found talking by phone or interacting by Zoom much more comfortable owing to their histories of trauma and consequent desire for contextual control. While frustrated by closed courts, we were imagining the adjacent possible resistance in representation undeterred by geographic distance, allowing us to join in out-of-state litigation, to advise distant migrants or consult distant experts.

What’s next?

A conversation with Alejandro Bracamontes, TRII DOJ-accredited immigration representative, and Doug Smith, TRII executive director

Doug Smith::

What’s next for TRII?

Alejandro Bracamontes::

We will train people from refugee communities to become fully accredited DOJ representatives, working together to address forced migration and its aftermaths.

Smith::

Why?

Bracamontes::

To bring masses of people to address appalling lack of representation in immigration courts, especially the detained, while also bringing more committed, better, more culturally aware and language-appropriate representatives who can understand, in ways we never will, how it feels to be detained and detested in their home countries and to teach immigration judges why migrants fled. They become effective leaders in their communities—in immigration, sure—but also in other areas of need: health care, food, education. Also, this will be a replicable model that can change the face of forced migration.

Smith::

It seems like you are invested in the idea of impacted community leadership?

Bracamontes::

I agree leadership from impacted communities is essential to durable and real change. Impacted people are trusted to advocate what is necessary and valued in communities. Only impacted leaders can best tell stories. Only they can be trusted to lead or instigate change.

Smith::

You use the term “ambient carceral state.” What do you mean by that?

Bracamontes::

I mean the stories, data, rumors current in immigrant communities which engender fear and isolation as a result of misinformation. Data that instill fear or misspent trust and keep people from fully exercising rights or self-deporting or acting in ways that bring them to the attention of authorities based on incomplete or incorrect expectations. Refugees who train and teach and advocate with TRII will be resources to disrupt the ambient carceral state. It takes the dynamic on at its core by developing leadership that is trusted in immigrant communities and widely spreading information from the perspective of the experience of forced migration to the U.S. today. We don’t expect that all of the refugees who go through TRII training will become accredited representatives with us, but they will be informed and connected and create a bridge among immigrant communities and the agencies that seek to serve them.

Smith::

Interesting: I know you know that surrounding towns have sought to address community fears by developing sophisticated apps to map ICE enforcement initiatives and warn at-risk individuals and entities, but your conception of how to address incipient community fears leverages trusted and stable voices who are network hubs in within relatively compact networks, correct?

Bracamontes::

Exactly. We are coming at the same problem from different orientations.

Smith::

How has Covid affected your work or your learning (or both)?

Bracamontes::

It’s led to both more work and more challenges. Our working theory is that building relationships with migrants would be the medium of change. We develop relationships that don’t replicate the oppressive hierarchies that our clients have survived. We were loath to give up in-person meetings for this reason, but also because many other advocacy shops went fully online or just shut down intake because of Covid, when migrant communities faced increased risks. We struggled to find ways to continue to serve communities, including spending much of our entire budget¹⁴ to rent unshared space big enough to accommodate safe practices and increasing client needs, but, in doing so, we discovered means of fostering relationships online that opens up whole new possibilities for training and representing people at a distance—in hospitals or detention, for example, or at the border.

Smith::

What is your experience with the interdisciplinary Wraparound project?

Bracamontes::

I think that it’s a great model for the communities we work with. Providing a whole person, whole community approach involving the city’s schools, psychological and medical professionals, recreation for the people we work with who are survivors of trauma, and our work is so much better working in concert with specialists and resources that permits people to come to terms with the context that led them to flee their countries. I also am interested in the idea of focusing holistic services on a measurable ideal, here high school graduation, and confronting everything that goes into something as concrete as high school graduation with a limited cohort of migrant teens, which not only creates change and success for those families but reveals the indicators of success and happiness for forced migrants generally.

Smith::

I notice you use the word “praxis” a lot. How is that concept important to your learning and/or your work?

Bracamontes::

Given the constant flux of the immigration system, “crimmigration” enforcement, and the relationships between the community and each connected but individual migrant, and since oppressive institutions are constantly recreating themselves, TRII is a learning organism that is constantly adjusting to ride the wave of reactions and counter-reactions to changing meanings of oppression.

Smith::

What makes you believe refugees can serve as effective advocates in immigration courts and BIA?

Bracamontes::

Having worked with refugees for four years, and having learned advocacy from the ground up myself, I know refugees have potential for a level of empathy and commitment and authentic storytelling much more advanced than even the best U.S. lawyers or organizers, plus they often come from radical advocacy backgrounds in far more hostile terrain than they will face in the U.S. immigration system.

Smith::

How would you compare learning in the classroom to what you learn in working at TRII?

Bracamontes::

While it’s important to have some knowledge of laws and procedures and some common vocabulary to discuss the work we are involved in, there is a joy and complexity and responsibility and living praxis that just cannot be created in a classroom—even with simulated exercises. There is also an atmosphere of experimentation, feedback, and reentering the arena that inculcates creative problem-solving and storytelling that cannot be recreated in any other way.

Smith::

A few new organizations have opened since TRII started to provide online training to prepare nonlawyers to assist immigration lawyers. How is TRII different?

Bracamontes::

We have an office in which we do the work in the training, and the education and training we get in terms of praxis and experimentation and after-action review is a qualitatively different experience. Beyond that, no matter how good their training might be, other programs’ graduates have to find their own placements with established lawyers, so their model, while wonderful, only marginally increases the mass power of immigrant advocacy and does not foster novel and creative ways of working with immigrant communities or advocating for them or retelling their stories to create social change. Moreover, those organizations are necessarily aggressively student-centered, and we are focused on migrant communities and impacted-community-led organizations. We understand that orientation, and TRII, actually started that way—celebrating student successes and geared toward preparing effective advocates for the future. But TRII is much more focused now on supporting impacted communities creating their own change on their own terms in the here and now.

Smith::

Is there one action or activity TRII does that stands out?

Bracamontes::

Every action we take is political and changes the fabric of the communities of which we are a part and the processes that disrupt oppression.

Smith::

What about the name?

Bracamontes::

As TRII transforms into a refugee-led organization whose actions are informed by the needs of the community it serves, I think the name no longer fits or sends the right message about who we are, and impedes our constant effort to convince the communities of which we are a part that we are not connected to the oppressive establishment from which they are seeking relief. It’s about freeing people from fear.

Smith::

Does TRII have any mechanisms in place to keep it tracking that mission?

Bracamontes::

As noted earlier, we were in touch with established immigrant advocacy and legal services organizations as well as the communities we served before we opened doors, and having a community-based storefront office invites constant community feedback on whether we are responding to the most urgent needs in an effective and accountable manner—and how we can do better. We have a diverse, community-based board of directors to make sure we stay mission-focused and the board is the keeper of institutional history and lessons learned. The board, and the broader community it represents, guide us now and into the future as a learning organization. Everyone involved in TRII has internalized our ends-means, plan-do-after-action-review model of praxis, and that model plays out in more formal class sessions, in individual meetings, team meetings, ad hoc learning groups, in twice weekly all-TRII sessions, as well as in board meetings.