Originally published in Student Lawyer , October 2002 (Vol. 31, No. 2)
Run for the Border
Law students looking for courtroom advocacy experience find it in South Texas,
where an ABA-sponsored program provides counsel to immigrants and asylum seekers
By Mark Curriden
On a hot and humid day last June near the Mexican border in Harlingen, Texas, law students Mitch Lowe and Seth Mc-Gibben found themselves in a small, nondescript courtroom. They were serving as counsel in open court before a federal immigration judge, advocating for their client’s freedom.
Okafor Vincent wasn’t charged with a crime, and there were no allegations of misconduct or illegal activity. Instead, the 25-year-old (who asked that his name be changed for this article) was seeking asylum. A Nigerian, Vincent said he wanted to live in the United States because he was persecuted for his religious beliefs back home. If he returned to Nigeria, he said, he would be beaten, jailed, and possibly even killed.
As Vincent’s official legal counsel, Lowe and McGibben filed his petition seeking relief, drafted and introduced a brief to the court explaining why their client deserved asylum, presented witnesses, and argued the law before the judge. And then, they nervously waited with their client in court as the judge recessed to his chambers to decide the case.
Lowe and McGibben, now 3Ls at the University of San Francisco School of Law, were volunteering for the South Texas Pro Bono Asylum Representation Project, best known as ProBAR. The program was created in 1989 as a joint pro bono venture by the American Bar Association, the State Bar of Texas, and the American Immigration Lawyers Association following a study which found that legal services for hundreds of people being detained annually in South Texas were woefully inadequate.
Every day, ProBAR representatives meet with 30 or so immigrants who had been detained after crossing the border from Mexico. After giving an hour-long presentation on the detainees’ legal rights, the lawyers try to line up free legal representation for those who want it and need it, which is a majority of cases.
For law students seeking practical experience, the good news is that it’s not necessary to hold a law degree to practice before an immigration court. Even so, student volunteers at ProBAR are supervised by a licensed lawyer.
ProBAR director Meredith Linsky says every law student and young lawyer who spends time with her and works on cases leaves with the same attitude: "This is a deeply enriching and career-enhancing experience. The program has so much to offer. It’s rich in terms of immigration law, evolving international legal principles, and U.S. public policy."
It’s also one of the best-kept secrets in the country when it comes to getting law students live courtroom and client experience.
"The only question I have is, why don’t more law students and summer associates come here?" Linsky asks. "We certainly need the help." (See "How to Work at ProBAR")
Although any law student or lawyer can sign up for the program, Lowe and McGibben volunteered as part of their summer clerkship at San Francisco’s Brobeck, Phleger & Harrison. The two agree with Linsky’s evaluation of ProBAR.
"I had done mock court before and participated in lots of other advocacy programs, but this was the most unbelievable experience," says Lowe, 24. "To have hands-on experience in the summer after your second year of law school is pretty incredible."
Adds McGibben, 28: "As a law student, it is easy to separate the meaning of the practice of law from our studies in school. This experience made me realize why I chose to be a lawyer and what it means to practice law."
Those familiar with ProBAR say the program is valuable not only for those who intend to practice immigration law or litigation. In fact, scores of lawyers from all sorts of practices journey to Harlingen once or twice a year to put in their pro bono hours. They find it improves their skills and fulfills a need to give back to their community.
And for students, it provides a lesson that can’t be taught in any classroom or through any mock trial. They see people desperate to become Americans. They witness families far away from home who have sacrificed everything in their search for a more promising place to raise their children.
Even though the U.S. Supreme Court has ruled that immigrants have the right to hire a lawyer, the justices have never said the government must provide them an attorney if they can’t afford one. That said, immigrants who seek asylum are six times more likely to win if they have legal representation, according to a study by the Georgetown Center for Migration.
"Because most of the cases involve immigrants who do not have counsel, the immigration judges truly appreciate the cases where there is legal representation," Linsky says. "The judges know legal counsel is doing this pro bono and so they are very friendly to legal counsel, be they a lawyer or law student."
To best understand ProBAR and the experience of handling one of these cases, you must comprehend the environment that exists in South Texas.
Hundreds of people are arrested and detained every month as they cross the border. They are held, sometimes for months, at the Port Isabel Service Processing Center, a medium security facility. Seventy percent of them speak only Spanish. Eighty-five percent have no money and no family in the United States.
Their violation: being in the United States without proper admission. Most come into the country by crossing the Rio Grande on rafts, inner tubes, or any device that will float. Others are hidden in the trunks of cars. Others try to walk alongside Highways 77 and 281, the only two roads out of the valley. Inevitably they are detected by Border Patrol agents on motorcycles, in Jeeps, or in helicopters. Others are captured when they trigger motion-sensor devices or are caught by hidden cameras. Buried in the ground are floodlights that come on when people on foot or on bicycles go off-road to avoid highway inspection spots.
Once arrested, the detainees wait several days before being offered the ability to post bond. Mexicans and Central Americans usually need to come up with between $5,000 and $10,000 to be released on bond. Those from Africa, the Middle East, and Brazil must post a bond ranging from $10,000 to $20,000. People who have committed felonies while in the United States illegally are not offered the opportunity to post bond.
Of the 30 or so immigrants who meet with ProBAR daily, few have a legitimate chance at winning relief. Most of the successes are those who seek asylum because they have been persecuted on account of their race, religion, nationality, political opinion, or social group—being gay, HIV positive, an ex-police officer, or a member of a union.
Others are so-called illegals who have lived in the United States for 10 years or more and who have spouses, children, or parents living in the States who are U.S. citizens. They must prove that their American citizen relatives will suffer exceptional and extremely unusual hardship if they’re deported.
Linsky says she always tries to provide law students with cases that are intriguing and where the possibility of victory exists. "I do not give them slam- dunk cases," she says. "I give these students cases where with thorough legal research, sufficient evidence gathering, and a good argument, they and their client might win."
The stakes are high, Linsky says. "This is real-life courtroom drama down here, where the students have real clients and a real judge and real opposition," she says. "And the difference between winning and losing really means a lot to the client on trial."
Lowe and McGibben understood that pressure right away. Their firm gave them packets of past cases and copies of the immigration statutes to study. Then, a few days later, they received from Linsky the ProBAR file with the details of their client and the case.
Okafor Vincent walked across the Mexico border in May 2001. Unlike the tens of thousands of other immigrants who make the short journey every year, the Nigerian didn’t try to avoid the Border Patrol or other authorities. Instead, he headed straight for the local U.S. Customs office. He turned himself in and announced he had come to the United States to seek asylum. Customs officials temporarily detained Vincent for questioning but released him as long as he agreed to remain in the area.
"A week before the trip down there, we called the client for the first time," Lowe says. "It went really well. He was very thankful to have someone advocating for him. He was very easy to work with."
On Saturday, June 22, Lowe, McGibben, and an associate from Brobeck flew from San Francisco to the South Texas town of Brownsville. The next morning, Lowe and McGibben got to meet their first client face to face. They picked him up at a refugee house and took him to the ProBAR headquarters a few miles away in Harlingen.
"[Vincent] was very soft spoken, polite, and well-educated," McGibben says. "We explained what being under oath meant. We told him we needed to know all the details of his experience—be they pleasant or not."
Adds Lowe, "He was a great client to have. He was the only client I have ever had. For five or six hours, we went over and over his story. He answered all of our questions."
The next day, Lowe and McGibben drafted a written brief for the court and prepared for the hearing. They got an official declaration of facts from their client. The next morning, they picked up Vincent and drove him to court.
"This was my first time to stand before any court, but I wasn’t as nervous as I thought I would be," Lowe says. "Meredith [Linsky] walked us through what would happen, so we were well prepared. They told us about this judge. It wasn’t trial by fire. We were so prepared that it made us feel more comfortable."
The hearing lasted three hours. Lowe gave the opening statement, summarizing what the court would see that day. He wrote out his opening. He read some of it, but sometimes he "just talked."
"The judge treated us the same as he treated the INS lawyer," Lowe says. "He didn’t baby us. We’ve heard in law school that when you go to court, it is 90 percent preparation. I learned in this case that that statement is definitely true."
At one point in the hearing, the immigration judge quickly turned to McGibben to ask about a legal issue in dispute. Without hesitation, McGibben responded that because his client was the victim of persecution, the burden shifted to the government to show that the applicant could be safely relocated to a different part of his country. McGibben cited case law to support his argument. The judge said he was impressed.
The judge told the young counselors and Vincent to wait in the courtroom while he considered his decision. Forty-five minutes later, the judge re-entered the courtroom. He ruled that Vincent had not been persecuted, that all he had to do was remain in the friendly confines of south Nigeria and he would be safe. Petition denied.
"We had worked so hard on this case and built such a personal relationship with [Vincent], so when we heard the decision, I immediately thought about his future," Lowe says. "I promise you, it hurts to lose." Lowe and McGibben spent the rest of their summer working on Vincent’s appeal.
Other law students had similarly rewarding experiences at ProBAR last summer. Jennie Kneedler, a second-year law student at Yale, had been interested in immigration law and policy since she worked as a paralegal at a nonprofit immigration organization in Boston. Then, during winter break last year, the 25-year-old was surfing the Internet looking for summer opportunities. That’s when she noticed ProBAR.
Within weeks, it was settled. Thanks to a scholarship fund, Yale agreed to pay Kneedler $1,700 a month to work in Harlingen during the summer.
Her first case involved a Mexican citizen who had been arrested after living in Florida for 10 years. But he was detained in the spring when he visited a friend in South Texas. The INS told the man he had no right to post bond because he had committed a misdemeanor shoplifting offense four years earlier. ProBAR lawyers met him during a daily briefing session, and his case was assigned to Kneedler. After interviewing the client and researching the law, Kneedler came to a different conclusion.
She will remember July 3 forever. It was the first time she represented a client in court. Better yet, she won. Kneedler convinced the immigration judge that her client was eligible for bond, which the judge set at $5,000.
"Without legal representation, he would never have known that he was eligible for bond and he would still be sitting in a detention cell waiting to be deported," Kneedler says. "It was a total experience for me—using my legal skills and knowledge and opening my eyes to the culture. There’s so much mixing of Spanish and English. This is the work I want to do."
Then there’s the story of Sonia Coble. After she finished her final year of law school at the University of Florida last spring and awaited her results from the Maryland bar exam, Coble wanted to get some experience. She had heard about ProBAR. And she had a firsthand interest in immigration law.
In 1981, Coble’s native El Salvador was embroiled in civil war. The country’s military leaders were forcing young boys to join the fight. Her parents, afraid their children would be drafted, decided to flee. In the middle of the night, the 9-year-old Coble left El Salvador with her mother, father, and five brothers. They traveled through Mexico and crossed the border near El Paso. Her parents obtained green cards, allowing them to live and work in the United States. In 2001, she became a U.S. citizen.
"Sonia called me about our program, but she was very apprehensive—not sure if she could do it or would be helpful," Linsky says. "I promised her she could, but I also gave her a very tough case."
It was the case of Jose Martinez, who was born in Mexico in 1979. His mother, a native-born American citizen who worked on U.S. farms picking tomatoes and cotton, brought him to the United States when he was 6 years old. There were no problems until Martinez turned 18 and joined a gang. He participated in an armed robbery in Corpus Christi, Texas. He served his prison time. But when it came time for Martinez to be released, INS officials announced they were having him deported.
In researching the case, Coble learned that Martinez could not be deported if it could be proved that his mother had lived in the United States for at least 10 years before his birth. Coble immediately interviewed Martinez’s mother, who said she had been coming to the United States to work for 15 or 20 years.
"My job was to track down her history in the United States, but I quickly discovered she had no rent receipts, no utility bills, or anything like that to document her existence," Coble says.
Instead, she tracked down people who worked with her in the fields, lived with her in apartments, and hired her to clean their houses. She collected all their statements.
"Some of those people are now in nursing homes," Coble says. "I even got her ex-husband in Mexico to tell me she would leave him for most of the year to live and work in the U.S."
In late April, Coble stood before an immigration judge and presented her evidence. The judge agreed, ruling Martinez’s mother had been in the United States for at least a decade. And, as a result, he halted removal or deportation proceedings against Martinez.
"After being in the United States for two decades and attending good schools, I had forgotten what it’s like trying to get into this wonderful country," Coble says. "Compared to the stories I heard down there in Harlingen, my family’s trip here was a piece of cake.
"The experience at ProBAR made me rethink my priorities in life. It made me question whether I just wanted to work at a big law firm making money or do I want to make a difference."
Coble returned to Maryland in May. She spurned offers from law firms and joined the Spanish Catholic Center as a legal adviser.
"Every person who comes down here—be they a seasoned partner at a law firm or a young law student—walks away a better lawyer and a better person," Linsky says. "It’s a wonderful opportunity to gain experience and enhance the résumé. But it is equally a wonderful opportunity to grow as a citizen and a lawyer. Call me. We would love to have your help."
Mark Curriden, until last spring a legal affairs writer with the Dallas Morning News, is legal media strategist for the law firm Vinson & Elkins in Dallas.