States and Status: A Study of Geographical Disparities for Immigrant Youth

This article looks at the legal and practical challenges arising out of a particular immigration protection for abandoned, abused, and neglected child migrants called “Special Immigrant Juvenile Status” (SIJS). This benefit, which is a pathway to legal permanent residence and citizenship, is the only area within federal immigration law that requires a state court to take action in order for immigration authorities to consider an individual’s eligibility for relief. Using an original data set of roughly 12,000 SIJS applications from the Department of Homeland Security in June 2013, this article describes trends over time and by state regarding the number of SIJS applicants. After considering population differences, the article examines application disparities among states and identify a subset of seven particularly high- and low-application states, as well as states that have had significant increases in the number of applications. The article discusses how factors such as states’ family laws, child welfare policies, and specialized legal resources may affect the ability of potential SIJS applicants to access protection. Ultimately, this article proposes a variety of reforms that seek to improve the law: increasing the screening of potentially eligible children, ensuring that these children have access to counsel, and creating a federal safeguard to address disparities created by differences in states’ laws

Minor Protections: Best Practices for Representing Child Migrants

In recent years, the number of Central American children fleeing violence and seeking protection in the United States has surged, and these children’s cases have flooded the immigration courts. Children are treated virtually the same as adults in immigration court, and, because they are not provided government-appointed counsel, many must defend themselves from deportation pro se. In 2014, 80% of children—roughly 34,130—were unrepresented, and this lack of representation often has profound consequences: many of these children are eligible for protection from deportation, but, without access to attorneys, most will be deported anyway. Governments, nonprofits, and child advocates have taken action to address this justice gap, but these efforts have fallen short of a solution. In a recent case, J.E.F.M. v. Lynch, regarding the government’s failure to provide counsel to defend children matched against federal prosecutors in immigration court, the Ninth Circuit implored the Executive and Congress to address the crisis: “[t]o give meaning to ‘Equal Justice Under Law,’ . . . to ensure the fair and effective administration of our immigration system, and to protect the interests of children who must struggle through that system, the problem demands action now.” The Justice Department and some state and local governments and nonprofits have begun funding a limited number of temporary fellowship positions, usually for recent law graduates, to defend children from deportation. As these initiatives develop and expand, policy makers and philanthropic organizations will need to determine the most effective and efficient ways to provide counsel to so many migrant children. This article contemplates the best practices for high volume delivery of legal services for children in immigration court. Drawing on original, empirical data regarding recent Special Immigrant Juvenile Status (SIJS) applications and extensive interviews with organizations and individuals nationwide filing the most SIJS applications, this article considers emerging trends in the representation of child migrants, identifies common characteristics of effective high volume practices representing children, and offers recommendations to expand access to qualified counsel and to create a child-centered approach to youth in removal proceedings

The School to Deportation Pipeline

The United States immigration regime has a long and sordid history of explicit racism, including limiting citizenship to free whites, excluding Chinese immigrants, deporting massive numbers of Mexican immigrants and U.S. citizens of Mexican ancestry, and implementing a national quotas system preferencing Western Europeans. More subtle bias has seeped into the system through the convergence of the criminal and immigration law regimes. Immigration enforcement has seen a rise in mass immigrant detention and deportation, bolstered by provocative language casting immigrants as undeserving undesirables: criminals, gang members, and terrorists. Immigrant children, particularly black and Latino boys, are increasingly finding themselves in the cross hairs of a punitive immigration system, over-policing within schools, and law enforcement, all of which can be compounded by racial biases and a lack of special protections for youth in the immigration regime. The confluence of these systems results in a trajectory that has been referred to as “the school to deportation pipeline.” Gang allegations in immigration proceedings are an emerging practice in this trajectory. Using non-uniform and broad guidelines, law enforcement, school officials, and immigration agents may label immigrant youth as gang-affiliated based on youths’ clothes, friends, or even where they live. These allegations serve as the basis to detain, deny bond, deny immigration benefits, and deport youth in growing numbers. This Article posits that gang allegations are a natural outgrowth of the convergence of the criminal and immigration schemes, serving as a means to preserve racial inequality. This Article further suggests excluding the consideration of gang allegations from immigration adjudications because their use undermines fundamental fairness. Finally, this Article proposes a three-pronged approach to counter the use of gang allegations, including initiatives to interrupt bias, take youthfulness into account, and increase access to counsel in immigration proceedings

Critical Interviewing

Critical lawyering—also at times called rebellious, community, and movement lawyering—attempts to further social justice alongside impacted communities. While much has been written about the contours of this form of lawyering and case examples illustrating core principles, little has been written about the mechanics of teaching critical lawyering skills. This Article seeks to expand critical lawyering theory, and in doing so, provide an example of a pedagogical approach to teaching what we term “critical interviewing.” Critical interviewing means using an intersectional lens to collaborate with clients, communities, interviewing partners, and interpreters in a legal interview. Critical interviewers identify and take into account historical and structural biases, privileges, and the role they play in the attorney-client relationship. This Article urges law professors and legal professionals to operationalize critical legal theories into practice, and ultimately to develop experiential pedagogies to teach these critical lawyering skills. This call to developing new pedagogies is particularly urgent in the wake of nationwide uprisings in response to the killing of George Floyd and others, as well as corresponding law schools’ commitments to identify and dismantle institutional racism. In this Article, we first set forth the contours of the canonical client interviewing pedagogy. Second, we outline the tenets of critical lawyering—a lawyering practice animated by critical legal theories. Next, we advance the pedagogy of critical interviewing, building upon client-centered lawyering texts. We describe one methodology of teaching critical interviewing: the Legal Interviewing and Language Access films. Ideally positioned to use with virtual, hybrid, or in person learning, these videos raise a multitude of issues, including addressing bias and collaborating with clinic partners, interpreters, and clients. Finally, the Article considers areas ripe for further exploration within critical interviewing, concluding with a call for engagement with new pedagogical tools to teach critical interviewing, along with other aspects of critical lawyering

The School to Deportation Pipeline

The United States immigration regime has a long and sordid history of explicit racism, including limiting citizenship to free whites, excluding Chinese immigrants, deporting massive numbers of Mexican immigrants and U.S. citizens of Mexican ancestry, and implementing a national quotas system preferencing Western Europeans. More subtle bias has seeped into the system through the convergence of the criminal and immigration law regimes. Immigration enforcement has seen a rise in mass immigrant detention and deportation, bolstered by provocative language casting immigrants as undeserving undesirables: criminals, gang members, and terrorists. Immigrant children, particularly black and Latino boys, are increasingly finding themselves in the cross hairs of a punitive immigration system, over-policing within schools, and law enforcement, all of which can be compounded by racial biases and a lack of special protections for youth in the immigration regime. The confluence of these systems results in a trajectory that has been referred to as “the school to deportation pipeline.” Gang allegations in immigration proceedings are an emerging practice in this trajectory. Using non-uniform and broad guidelines, law enforcement, school officials, and immigration agents may label immigrant youth as gang-affiliated based on youths’ clothes, friends, or even where they live. These allegations serve as the basis to detain, deny bond, deny immigration benefits, and deport youth in growing numbers. This Article posits that gang allegations are a natural outgrowth of the convergence of the criminal and immigration schemes, serving as a means to preserve racial inequality. This Article further suggests excluding the consideration of gang allegations from immigration adjudications because their use undermines fundamental fairness. Finally, this Article proposes a three-pronged approach to counter the use of gang allegations, including initiatives to interrupt bias, take youthfulness into account, and increase access to counsel in immigration proceedings

Assessing the Experiential (R)evolution

For more than a century, law schools have resisted substantial reforms relating to experiential education. Yet, in 2014, the ABA mandated a six-credit experiential course graduation requirement for law schools, alongside a packet of experiential curriculum amendments. Proponents of experiential education had hoped for a fifteen-credit mandate, aligning law schools with other professional schools that require one-quarter to one-third skills training. Still, six credits is significant, potentially marking a striking shift in the direction of legal education. To date, no one—including the ABA—has broadly evaluated the post-mandate legal education experiential landscape. It is particularly urgent to consider recent shifts in legal education as law schools grapple with new paths forward in the backdrop of a global pandemic and calls to meaningfully address systemic racism in legal education.In 2018–2019, the first classes of law students graduated under the revised ABA Standards, and the authors conducted a national survey of ABA-accredited law schools, receiving responses from 126 institutions. Data collected from this survey informed our study, which is the first systematic, empirical investigation into the experiential landscape shift since the revised Standards were adopted. Our analysis reveals a proliferation of deans and directors of experiential education, continued growth in experiential curricula, including among experiential courses in the first-year curriculum, and experimentation with new pedagogical approaches. Hybrid experiential courses termed “labs” and “practicums” have expanded as well. These trends of expansion and experimentation suggest law schools individually and collectively should enter into a period of assessment. Institutions should take stock of their existing programming to ensure they have engaged in responsive and responsible growth. These assessments should also consider whether the institutions have promoted sustainability for and diversity within their experiential faculty, programs, deans, and directors. Particularly, in the context of looming financial concerns, an ever-changing legal market, and an evolving profile of law students, schools should resist efforts to shortchange experiential programs; overstretch experiential deans, directors, and faculty; give short shrift to diversity and equity concerns; and relax rigorous standards for experiential education

Assessing the Experiential (R)evolution

For more than a century, law schools have resisted substantial reforms relating to experiential education. Yet, in 2014, the ABA mandated a six-credit experiential course graduation requirement for law schools, alongside a packet of experiential curriculum amendments. Proponents of experiential education had hoped for a fifteen-credit mandate, aligning law schools with other professional schools that require one-quarter to one-third skills training. Still, six credits is significant, potentially marking a striking shift in the direction of legal education. To date, no one—including the ABA—has broadly evaluated the post-mandate legal education experiential landscape. It is particularly urgent to consider recent shifts in legal education as law schools grapple with new paths forward in the backdrop of a global pandemic and calls to meaningfully address systemic racism in legal education. In 2018–2019, the first classes of law students graduated under the revised ABA Standards, and the authors conducted a national survey of ABA-accredited law schools, receiving responses from 126 institutions. Data collected from this survey informed our study, which is the first systematic, empirical investigation into the experiential landscape shift since the revised Standards were adopted. Our analysis reveals a proliferation of deans and directors of experiential education, continued growth in experiential curricula, including among experiential courses in the first-year curriculum, and experimentation with new pedagogical approaches. Hybrid experiential courses termed “labs” and “practicums” have expanded as well. These trends of expansion and experimentation suggest law schools individually and collectively should enter into a period of assessment. Institutions should take stock of their existing programming to ensure they have engaged in responsive and responsible growth. These assessments should also consider whether the institutions have promoted sustainability for and diversity within their experiential faculty, programs, deans, and directors. Particularly, in the context of looming financial concerns, an ever-changing legal market, and an evolving profile of law students, schools should resist efforts to shortchange experiential programs; overstretch experiential deans, directors, and faculty; give short shrift to diversity and equity concerns; and relax rigorous standards for experiential education

Critical Interviewing

Critical lawyering—also at times called rebellious, community, and movement lawyering—attempts to further social justice alongside impacted communities. While much has been written about the contours of this form of lawyering and case examples illustrating core principles, little has been written about the mechanics of teaching critical lawyering skills. This Article seeks to expand critical lawyering theory, and in doing so, provide an example of a pedagogical approach to teaching what we term “critical interviewing.” Critical interviewing means using an intersectional lens to collaborate with clients, communities, interviewing partners, and interpreters in a legal interview. Critical interviewers identify and take into account historical and structural biases, privileges, and the role they play in the attorney-client relationship. This Article urges law professors and legal professionals to operationalize critical legal theories into practice, and ultimately to develop experiential pedagogies to teach these critical lawyering skills. This call to developing new pedagogies is particularly urgent in the wake of nationwide uprisings in response to the killing of George Floyd and others, as well as corresponding law schools’ commitments to identify and dismantle institutional racism. In this Article, we first set forth the contours of the canonical client interviewing pedagogy. Second, we outline the tenets of critical lawyering—a lawyering practice animated by critical legal theories. Next, we advance the pedagogy of critical interviewing, building upon client-centered lawyering texts. We describe one methodology of teaching critical interviewing: the Legal Interviewing and Language Access films. Ideally positioned to use with virtual, hybrid, or in person learning, these videos raise a multitude of issues, including addressing bias and collaborating with clinic partners, interpreters, and clients. Finally, the Article considers areas ripe for further exploration within critical interviewing, concluding with a call for engagement with new pedagogical tools to teach critical interviewing, along with other aspects of critical lawyering