Providing Access to Justice for Immigrants and Asylum Seekers

Erin Barbato, director of the Immigrant Justice Clinic (IJC) at the University of Wisconsin Law School, has a knot in the pit of her stomach. It’s early March, and just a week ago, Barbato learned that most of the female population of the Dodge County Detention Facility in Juneau, Wisconsin, has been moved without explanation to a facility in Kankakee, Illinois.

US Customs and Immigration Enforcement (ICE) uses the Dodge facility to house immigrants from around the world who are in removal proceedings that could lead to deportation. Once a month, Barbato and her students at IJC drive an hour along country roads to provide pro bono legal assistance to immigrants who can’t afford to hire a private-practice attorney — a vital service, when studies have shown that an immigrant without a lawyer is three times more likely to be deported than an immigrant who has one.

tents at a detention center in Florida
Migrant children who have been separated from their families can be seen in tents at a detention center in Homestead, Florida on June 27, 2019. Public outcry over Trump’s handling of the border crisis has increased dramatically after a migrant rights group revealed alarming detention conditions of migrant children in Texas, where children were deprived of showers and clean clothes for weeks.

Although many of the people detained at Dodge are asylum-seekers who have committed no crimes, all are clothed in prison uniforms and housed alongside convicted criminals. The women’s stories are often particularly harrowing: many were subjected to violence and sexual abuse not only in their home countries, but also during their journey to the United States.

If Barbato concludes that IJC can help them, she and her students will file their paperwork with the immigration authorities; visit them weekly; and represent them before the Chicago Immigration Court, which hears cases from Illinois, Wisconsin, and Indiana.

“The heartbreaking, gut-wrenching part of it is that we meet with 30 to 50 people,” Barbato says of those initial consultations, “but we can only offer representation to one or two.”

Kankakee, however, is more than three hours away, and Barbato cannot imagine how her students will be able to continue advising and representing the people who have been relocated. Worse yet, she suspects that all of the immigrants detained at Dodge might ultimately be transferred — though her repeated calls to ICE have yielded no information as yet.

As unsettling as it is, however, the news from Dodge is only one of a long list of recent policy upheavals that have made asylum nearly impossible to achieve for the vast majority of those who seek it — and that have radically altered the nature of the work that the students in the IJC do, and where they do it. Add to that list the widespread disruptions caused by the ongoing coronavirus pandemic, and the situation appears daunting at least, and impossible at worst. Yet the students and staff of IJC are not about to throw in the towel.

headshot of Erin Barbato
Erin Barbato

Barbato’s direction

Under Barbato’s direction, the eleven students currently working at the clinic handle a wide range of immigration cases. On any given day, they may find themselves filing visa applications; helping undocumented migrants remain in the country under the Deferred Action of Childhood Arrival (DACA) policy; and securing green cards for undocumented children who have been abused, neglected, or abandoned by their parents.

But the core of the clinic’s work revolves around helping asylum-seekers secure the protections guaranteed them under American law. And that has become much more difficult.

According to Barbato, the laws governing asylum have not changed since the Refugee Act of 1980 established a statutory system for processing foreign refugees along with asylum-seekers who are at the border or already inside the country. Asylum claims hinge upon a so-called credible fear interview, which requires immigrants to convince asylum officers that they have a well-founded fear of being persecuted back home. Success means being released on bond or sent to a detention center like Dodge to await a hearing before an immigration judge.

The Trump administration, however, has reshaped the asylum process without touching the underlying statute. For example, Customs and Border Patrol (CBP) has adopted a metering, or “turn back,” policy that forces asylum-seekers to take a number and wait for months in Mexico before being processed. The Migrant Protection Protocols (MPP) compel non-Mexican asylum-seekers to remain in Mexico for the duration of their US immigration proceedings. And a recently imposed third-country transit ban has effectively rendered anyone who traveled to another country on their way to the US — including Mexico — ineligible for asylum.

As a result, the number of immigrants coming to Dodge from the southern border has slowed to a trickle, and the likelihood of their asylum claims being granted has plummeted. The last clear victory Barbato can remember involved a Venezuelan family that came to Mexico by way of Peru before the transit ban was implemented in 2019. It was by no means an easy case; Barbato and her students had to provide a judge in Chicago with affidavits from experts on Latin American politics to establish that the family could not safely return home. But their asylum claim was ultimately granted.

Since then, however, even the strongest cases — such as a Cameroonian man who fled his home country due to political oppression only to be severely beaten and nearly kidnapped in Mexico by one of the many gangs that prey on the burgeoning migrant population there — are no longer eligible for asylum. The best IJC can do for him would be to secure withholding of removal, which would afford him only a temporary and limited reprieve from deportation: he would lack many of the protections afforded by asylum, he would have no path to citizenship, he wouldn’t be able to have his wife and two-year-old daughter join him — and he could still be deported if conditions improved in his home country.

IJC continues to serve detained individuals at Dodge and to field calls from undocumented immigrants across Dane County who need pro bono assistance, including some who have been caught up in recent ICE raids. Students at the clinic also volunteer at the pro bono clinics offered in Madison by the Community Immigration Law Center, where Barbato is a board member. And they provide information and advice to UW undergraduates and even fellow Law School students who are themselves undocumented, or have family members who are.

“They’re scared to go to class because they don’t know if their parents are going to be there when they get home,” Barbato says. “They’re scared that every knock on the door is going to be an Immigration and Customs Enforcement officer.”

“They’re scared to go to class because they don’t know if their parents are going to be there when they get home. They’re scared that every knock on the door is going to be an Immigration and Customs Enforcement officer.”

But as the government has applied increasing pressure at the southern border, Barbato has found it necessary to shift the clinic’s attention there as well. Since becoming director in 2018, she has twice taken a group of student volunteers to the South Texas Family Residential Facility in Dilley, Texas — a detention center that can house as many as 2,400 women and children at a time — to provide free legal services to asylum-seekers through the Dilley Pro Bono Project.

Barbato and her students are often the first people to hear asylum-seekers’ stories. Some suffered sexual abuse in their home countries before making the dangerous trek to Mexico. Others were raped or sex-trafficked after they arrived at the border. Often, the students must explain to them that the abuse they suffered is considered a crime in the United States, and that they will have to describe it yet again during their credible fear interviews. The entire process is grueling — both for the victims who must relive their trauma for strangers, and for the students who experience it vicariously.

“It was emotionally and mentally exhausting to listen to their stories and not do more for them,” says Perla Rubio ’21, a third-year student who helps supervise the second-year students in the clinic. Sometimes, at the end of the day, she and her fellow students “would just go to the hotel and cry.”

As difficult as it was, however, Rubio says the experience of working with detained families at that stage in the asylum process was worth it.

“It was pretty amazing,” she says. “It made me understand the process more, and also understand my clients better.”

Nonetheless, the first trip to Dilley was so stressful that Barbato brought in a mindfulness expert from the UW Center for Healthy Minds to help students deal with the emotional and psychological fallout. This year, she plans to enlist students from the UW School of Social Work to help support both her students and their clients.

The situation became even more difficult for all concerned after the third-country transit ban caused many people with valid asylum claims to nonetheless fail their credible fear interviews — including the vast majority of the women whom Barbato and her students tried to help on their second trip to Dilley last August. Many returned to the students in tears, astonished that the horrors they had suffered were apparently not enough to get them a hearing.

Barbato and her students now find themselves spending more time seeking judicial review of negative credible fear findings by asylum officers, and more effort appealing negative decisions by immigration judges to the Board of Immigration Appeals (BIA). BIA decisions are in turn subject to review in the federal courts, and Barbato anticipates having to take some IJC cases all the way to the US Court of Appeals for the Seventh Circuit in Chicago.

Barbato has also begun taking students to Tijuana to volunteer with Al Otro Lado (“To the Other Side”), a nonprofit legal services organization that helps indigent deportees and migrants — including ones who are now stuck in Mexico as they wait to present themselves to CBP in San Diego.

“I never thought that we’d be going to Mexico to represent asylum-seekers,” Barbato says.

The work itself can seem surreal. Barbato first traveled to Tijuana shortly after the “zero tolerance” policy of 2017 caused thousands of children to be torn from their families. The American government had proven unable to reunite many parents and children because they had lost track of them, so Barbato found herself writing the birthdate of every child she worked with on their arm along with the name of their parents, just in case they were separated.

The COVID-19 pandemic has put a temporary halt to such travel, of course. And it has introduced a whole new level of complexity, not to mention urgency, to the work that the clinic does.

Since late March, Barbato and her students have had to stop consulting in person with detained immigrants and have been working with them exclusively by telephone instead. Similarly, when a new batch of law students started at IJC in May, they found themselves doing all of their intakes and consults remotely.

“The clinicians at the Law School are trying to figure out how to continue teaching but still protect our students, protect ourselves, and protect our clients,” she says.

What’s more, she and her students are now scrambling to get clients who are especially vulnerable to the virus out of confinement. One client who couldn’t obtain protective gear despite being immuno-compromised was living alongside confirmed COVID-19 patients at the Otay Mesa Detention Center in San Diego.

“My goal is to ensure that students learn how to be ethical, zealous immigration attorneys who understand the complexities of the system and the necessity of the type of work we do here. And if they choose to go into another field, they’ll understand that they can do this work pro bono as well.”

IJC requested that ICE parole their client on the grounds that he is at high risk. After weeks of uncertainty — in which ICE denied parole, then approved parole, then wouldn’t allow for release — the client was finally released and is now with family. In the midst of the back and forth between IJC and ICE, the ACLU filed for a temporary restraining order for detainees identified as medically vulnerable for a large group at the Otay facility, ultimately leading to his release.

Because of these experiences, Barbato is now exploring how the IJC can assist other legal organizations file Freedom of Information Act requests to determine how people in detention are being treated during the pandemic.

Barbato wants to see all IJC clients ultimately become US citizens, and she wants to ensure their safety and security along the way. But even if that seems especially challenging at the moment, she takes comfort in the knowledge that her students are giving their clients access to justice and ensuring that they need not stand alone before the law. And she knows that the work they do at the clinic will enable them to continue providing this crucial service after graduation.

“My goal is to ensure that students learn how to be ethical, zealous immigration attorneys who understand the complexities of the system and the necessity of the type of work we do here,” she says. “And if they choose to go into another field, they’ll understand that they can do this work pro bono as well.”