On the border

The primary purpose of the Immigrant Detention Project trip—generously funded by The John & Kathleen Schreiber Foundation—was to assist lawyers at the Florence Immigrant & Refugee Rights Project, the only organization in Arizona that provides free legal aid and social services to detained men, women, and children who are under threat of deportation. Many of the immigrants have fled their home countries due to horrendous circumstances, such as severe political unrest, crushing poverty, and chronic gang-related violence.

“Because deportation is a civil, rather than criminal, sanction, detainees are not afforded the constitutional protection of representation under the Sixth Amendment,” Kaufka Walts says. “Students could see how current immigration policies affect real human beings and begin to learn about the complexities of U.S. immigration law. They saw how unjust it is to ask asylum seekers to represent themselves, not only against an immigration judge, but also against a Department of Homeland Security trial attorney who presents the government’s case against them—and in a foreign language.”

According to Kaufka Walts, detained immigrants, particularly those held in remote locations, face the additional obstacle of accessing counsel from a secured facility. 

During the one-week trip, the Loyola team in Arizona worked with five asylum clients, observed more than 50 immigration court hearings, and assisted with information intake for 15 detainees at a know-your-rights presentation. Three additional students stayed on campus in Chicago with a supervising legal scholar to develop a manual for immigration attorneys working with detained children on how to report abuses against children. “It was a pretty intense week for us,” says Kaufka Walts.

Location, location, location

“Judges have considerable discretion over whether to grant or deny asylum applications,” says Kaufka Walts. She cited Syracuse University’s 2019 Transactional Records Access Clearinghouse (TRAC) study, which revealed that the location where an immigrant files for asylum and which judge is assigned to the case “can play an influential—even determinate—role in the asylum decision reached.” Immigration judges decided a record number of asylum cases in 2019, and of the 67,406 cases decided, 69 percent were denied. 

In Eloy, for example, more than 85 percent of cases in 2019 were denied; in Chicago, the denial rate was less than 50 percent. Some of the highest rates of denials—more than 90 percent—were in Houston; El Paso, Texas; and Louisville, Kentucky. Both New York City and San Francisco denied less than 30 percent of cases.

To prepare students for the trip, Kaufka Walts, who also is director of the law school’s Center for the Human Rights of Children, and her Immigration Law Practicum co-instructor Judge Beatriz Frausto-Sandoval provided a primer that included a brief history of immigration law and policy, an introduction to foundational law, and information about some of the skills they would need for their visit. For example, students learned how to prepare clients for credible fear interviews in which detainees before an immigration judge must establish a “significant possibility” of being persecuted on the basis of race, religion, nationality, membership in a particular social group, or political opinion if returned to their country. Students also received skills-based training in trauma-informed interviewing and managing vicarious trauma.

“I had never been in a detention center before this trip,” says student Fabiola Villalpando, who helped a client fleeing political persecution. “There were armed guards and razor wire on top of the walls, and the men and women wore prison jumpsuits. It was a hostile environment.”

On the first day, Villalpando spent four hours with clients gathering information needed for their asylum applications and explaining the hearing process. She then spent two days helping them complete their forms, and one more afternoon helping them review and sign their documents. “It was definitely a crunch because we wanted to be as thorough as possible with their applications, but we were facing time constraints,” she says.

“I wish we could know what happens to them,” she adds. “But with so many cases backlogged in the system—and especially now with the added stress of the coronavirus pandemic—I think that finding out how each case is resolved would be nearly impossible.”

Cura personalis in action

Last November, when Kaufka Walts approached newly retired Chicago immigration judge Jennie L. Giambastiani (JFRC ’82, JD ’86) about joining the trip, Giambastiani jumped at the chance.

“The students are at the beginning of their legal careers and have never had such direct contact with those facing the emotional horrors of being held captive without knowing what was happening to them,” she says. “I was there to guide them as they analyzed and crafted the petitions.” 

Throughout her career, Giambastiani has drawn on her Loyola education and the idea of cura personalis—care for the whole person—to guide her. “I followed and applied the law,” she says, “but also tried to conduct myself with a degree of compassion.”

For Loyola’s School of Law, the trip exemplifies a critical social justice step to provide a vulnerable population with a necessary legal service. 

“Students were face to face with clients, working within very tight deadlines, and spending 11-hour days putting together applications that would affect the rest of their clients’ lives,” says Kaufka Walts. “The stakes were high.”

Pointing again to Syracuse’s 2019 TRAC data, Kaufka Walts says that of the 1.2 million U.S. deportation cases decided between 2007 and 2012, clients who had representation in court were 10 times more likely to get relief. But less than 15 percent of detained immigrants have legal representation.

“This is why the Immigration Detention Project is so important—the presence or absence of legal representation for detained immigrants can mean life in the U.S., or persecution or even death in their home country,” Kaufka Walts says. “It can mean family reunification, or the devastation of family separation. It’s important work.” –Carla Beecher

Katherine Kaufka Walts coordinated the Immigrant Detention Project trip with Rocío Castañeda (JD ’13), a special projects attorney at the Florence Immigrant & Refugee Rights Project, which is named for its location in Florence, Arizona.

From Loyola Law Magazine 2020