Sabi Ardalan, director of the Harvard Immigration and Refugee Clinical Program, discusses the critical situation of asylum seekers at the southern border between the United States and Mexico. This is the first of a two-part series on immigration and asylum with Harvard faculty.
June:
Sabi Ardalan is director of the Harvard Immigration and Refugee Clinical Program. At the clinic, Ardalan supervises and trains law students working on applications for asylum and other humanitarian protections.
June:
Welcome, Sabi.
Sabi Ardalan:
Thank you.
June:
Today, we will be discussing the situation at the southern border between the United States and Mexico.
June:
But before we do that, could you actually tell us briefly about the Harvard Immigration and Refugee Clinical Program? What do you do as an organization?
Sabi Ardalan:
Sure. We are a clinical program at the law school. And there are four different components to the program. So there is a immigration and refugee advocacy clinic that has been around for over 30 years now, that focuses on teaching law students how to represent people who are seeking asylum and other forms of humanitarian protection here in the US. We represent people who have applications pending before US Citizenship and Immigration Service, who are fighting against deportation from this country. And we also do appellate work and policy advocacy.
Sabi Ardalan:
There is a second clinic under the umbrella of the program, it's the Crimmigration Clinic, which focuses on the intersection of criminal law and immigration law and does a lot of appellate litigation and policy advocacy in that space. It's a somewhat newer clinic. And students can do either or both of those clinics during their time at the law school.
Sabi Ardalan:
There's two other components of the program that I can touch on quickly. There's the HLS Immigration Project, which is a student practice organization students can join their first year that lets them get involved with client work and policy advocacy before they can do a clinic. And then there's also the Harvard Representation Initiative, which is the newest part of our program. It was launched in 2017 to provide representation to members of the Harvard community whose immigration status is at risk.
June:
That's really interesting. Have you had a lot of cases with that, in the Harvard community?
Sabi Ardalan:
Indeed. It was started when former president, Trump, announced that DACA would be ending, in an effort to provide representation for members of the Harvard community with DACA, or who were undocumented, who might face immigration enforcement or deportation. And so in order to provide them with representation, to try to put them on a path to longer-term relief.
Sabi Ardalan:
It then expanded to include folks on temporary protected status, since that status was also at risk under the Trump administration. And then also international students whose status was at risk because of the travel ban.
June:
Wow. Sounds like you keep very busy.
June:
Let's focus now on the southern border, because that's what's hot in the news. A record number of people are fleeing their countries and they're gathered at the border between the United States and Mexico. What can you tell us, briefly, about the situation at the border? Who are these people?
Sabi Ardalan:
So folks are coming from all over the world, seeking protection here in the US. Folks are fleeing really dire circumstances in their home countries, targeting persecution, violence, and need to seek safety here in the US. And that's a large part of who's coming to the southern border, are folks who are facing life-threatening situations and need refuge.
June:
Are these mostly from Latin America?
Sabi Ardalan:
Many are from Central America and Latin America, but there are also many from other countries around the world. So folks come from all over in order to find safety.
June:
Would you call this a humanitarian crisis?
Sabi Ardalan:
I think the humanitarian crisis is really how our country is treating folks who are coming to our borders. Folks have a right to seek asylum in the US. And the US has an obligation under international law and domestic law, which incorporate international law specifically into US law, to provide asylum to folks who need it. And so, by not allowing folks to enter the country to pursue their claims for relief, I think that that's the crisis.
Sabi Ardalan:
The US has been turning away folks since the pandemic started, under this arcane public health law. And has expelled many, many people who would have viable asylum claims but just haven't been able to access the asylum system in order present their claims in court.
June:
Could you explain for a minute, when you say, "This arcane health law," what are you referring to?
Sabi Ardalan:
Title 42 is an arcane public health law that dates back many years and has never, to date, been used as essentially an immigration enforcement mechanism. But under President Trump, when the pandemic started, it was put into effect to expel folks from the US who were coming to the southern border, under the auspices of protecting public health here in the US.
Sabi Ardalan:
But we've learned, over the course of the pandemic, that there are many ways to protect public health; from vaccinations, to masking, to social distancing. And there's no need to expel people who are coming here to seek asylum in order to protect public health. In fact, I think, maybe last week, over 1,000 doctors and medical and mental health professionals signed onto a letter, explaining that.
June:
Oh, that's really interesting. What is it that makes the southern border though, an attractive crossing place? Why don't people go to Canada or Alaska or someplace else?
Sabi Ardalan:
I think it's the place that people can get to. So people, unfortunately, don't have the luxury of choosing where they escape to or where they flee to when they are trying to save their lives. So the southern border is often the first place that they can come, where they know that they'll be able to seek safety in a country that should and could provide them with the refuge that they need.
June:
Mm-hmm (affirmative). Many of the people, as you mentioned before, at the border, are Central Americans; especially from Honduras, El Salvador and Guatemala.
June:
Coming up north for a minute, what sort of cases have you been seeing in the Boston area from Central Americans who have been detained, ask for asylum, and come north to relatives? I know you have a situation of confidentiality, but could you give us a couple example without names or tremendous specificity?
Sabi Ardalan:
Sure. Our clinic represents many people from Central America, who come to the Boston area and are trying to seek asylum here. Their cases range from everything to folks who are indigenous who faced systemic racism, attacks, and persecution because of their race, to activists who have spoken up in support of human rights and democracy in countries and have come under attack for that, to folks who've faced gender-based violence in their home countries, to folks who've faced violence based on their sexual orientation or gender identity, to folks who are fleeing gang-based violence. So there are a lot of reasons that folks need asylum in the US.
June:
Could you be a little bit more specific about one case ... without using names and maybe changing place of origin ... that moved you, that will give our listeners an example of the kind of things that these asylum-seekers are up against?
Sabi Ardalan:
Sure. I can give an example based on a number of different cases. So we've worked with families, for example, who have stood up to gangs in their communities, who have done outreach with churches to try to draw youth away from gangs and into the church, and who have either been single women or mothers and families who have come under attack for that work, who faced violence at the hands of gangs and haven't been able to get the protection they need in their home countries.
Sabi Ardalan:
So, under asylum law, if a person could get the protection they needed in their home country, there wouldn't be a basis for needing to seek refuge elsewhere. The Refugee Convention was created to provide surrogate protection where people's home countries aren't protecting them.
Sabi Ardalan:
But the folks who our clinic represent, often it would be futile for them to even seek protection. Or, if they sought it, they were unable to get effective protection from their home countries. So they end up having no choice, but to make a really dangerous journey, and well aware of the dangers, often with young children, but because they have no other choice to save their lives and to save the lives of their kids.
June:
This must be emotionally draining for you? Do you have trouble sleeping at night?
Sabi Ardalan:
It's certainly emotionally difficult hearing folks' stories, but it's also really inspiring hearing folks' stories. Our clients are incredible people who've fought and have just demonstrated so much strength and resilience and inspire me every day. And I feel very, very lucky to get to work with them and hear their stories.
June:
Let's go back to the border now. Could you talk, in particular, about the situation of the Haitians? Many of them are actually not coming from Haiti, they're coming from Chile, they're coming from Brazil. What is their asylum situation like, in general?
Sabi Ardalan:
So as folks have probably seen in the news, there have been a series of deportations of Haitians who've tried to come to the border, who've been expelled, at times violently, and put on flights back to Haiti, despite having very strong claims to needing to seek asylum here in the US.
Sabi Ardalan:
The US recognized this past spring, when it afforded temporary protected status to Haitian, just how dire the situation in Haiti is and how unsafe it is, and yet is expelling people from Haiti and not allowing them to move forward with their asylum claims despite that fact.
Sabi Ardalan:
And even though some folks from Haiti have spent time other countries on their way here ... at least the folks that I've been in contact with and I'm aware of ... have had really precarious existences and faced really difficult situations, often faced persecution in those other countries. And so have ended up having to come to the US, because this is the play where they could seek actual refuge and actually be safe.
June:
In addition to representing some of these people and looking at it as individual cases, is the clinic doing anything about the situation of the Haitians as a whole?
Sabi Ardalan:
So we're part of a lot of national groups and efforts that are trying to raise awareness about racist policies at the southern border, that are trying to push back against the US's failures to abide by its obligations under US law and international law to provide folks with the protection that they need.
June:
Mm-hmm (affirmative). I was reading in The New York Times the other day, Andrew Selee, the president to the Migration Policy Institute, wrote, "The US government might also think about opening up a special parole program and express legal entry for a number of Haitians who want to move to the United States, and reopening the one for Cubans which had been expended in practice for four years."
June:
Are you in agreement with this statement? Could you reflect on it?
Sabi Ardalan:
So I think the US should be looking into as many options as possible for figuring out ways for people who are in really desperate circumstances to have a chance to come here and to seek safety here.
Sabi Ardalan:
The programs that I'm aware of in the past, for this type of parole, have been limited to folks who have been petitioned for by their US citizen and green card holding immediate relatives here in the US. So, for example, spouses or children of US citizens and green card holders who are in Haiti or in Cuba and who have those petitions pending, to get them here more quickly than the petition might allow because of the humanitarian situation that they're facing in their home countries.
Sabi Ardalan:
I don't think that that's ... at least as it was previously conceived of ... isn't broad enough to respond to the really dire situation that many folks are in, in Haiti. I think, for many people, it's often really dangerous to wait in the country that they're from. And so they need to leave because their life is at risk. And so they can't often wait for these processes in their home country or they'll be killed.
June:
Mm-hmm (affirmative). So the parole measure probably would not work for the Haitians or the Cubans? [crosstalk 00:15:58]-
Sabi Ardalan:
I think it might work for some people, but I think it won't respond to folks who are in a situation where they can't wait in their home country for the opportunity to come to the US. For folks who are in really dire circumstances, they're going to have to leave their country in order to save their lives and to save the lives of their family members.
June:
I've been reading a lot about families, about unaccompanied minors. Does traveling in as a family in the chances of getting to stay in the United States? Or is that a myth?
Sabi Ardalan:
I think it's probably a myth. Asylum adjudications are conducted on a case-by-case basis. And so each case is evaluated on its own merits. And when people are traveling as family units, it's often one or both parents who's the lead applicant for asylum. And it's really the case of the parent that is considered in determining whether to grant asylum. And then the children get it derivatively, when a parent is granted asylum.
Sabi Ardalan:
So I think because asylum is, by definition, a case-by-case analysis and determination, I don't think there would be any way of figuring out whether family units or individuals without families would have better chances at success.
June:
And what about the case of unaccompanied minors?
Sabi Ardalan:
So unaccompanied minors have some other forms of protection available to them. In addition to being able to seek asylum here in the US, there is a special visa for special immigrant juveniles who come to the US with either no parents or with one parent who have been abused, abandoned, or neglected in their countries of origin.
Sabi Ardalan:
So there are some other forms of relief that unaccompanied minors might be eligible for, in addition to asylum.
June:
Could you explain to our listeners, what is the Remain in Mexico policy that started under Donald Trump? And why is that policy still in place?
Sabi Ardalan:
So the Remain in Mexico policy, which was termed the Migrant Protection Protocols ... even though it did not afford anyone protection ... was a policy under which some folks who were seeking asylum in the US were forced to remain in Mexico while they were waiting for their day in court, and then forced to proceed in these tent court situations.
Sabi Ardalan:
And folks who were put into that program faced really serious human rights abuses while they were forced to remain in Mexico. They were in very precarious situations, often in tent encampments. They faced kidnappings and robbery and assault, and faced a lot of hurdles in accessing counsel.
Sabi Ardalan:
So their cases were supposed to go forward in US immigration court, but because they were waiting in Mexico it was really impossible for folks to get lawyers to help them prepare their claims to be heard in court. And in immigration proceedings there is a right to an attorney, but it's at your own expense. And so people either have to be able to hire private immigration lawyers or find pro bono counsel to represent them because the government isn't currently appointing lawyers to folks.
Sabi Ardalan:
And so, yeah, folks were left in really, really difficult circumstances. The people whose cases went forward had very, very low grant rates. I think as low as around 1%. And the Biden administration has tried to undo this program, but has faced court challenges in that. And because of ongoing litigation, the policy is supposed to be reimplemented. But the Biden administration is trying to undo it, but is dealing with ongoing litigation from states that are trying to have the policy remain on the books.
June:
So, in other words, if I hear you correctly, there's a challenge to Remain in Mexico being on the books, but people do not have to remain in Mexico at the current time?
Sabi Ardalan:
At the current time, the administration, as of Friday, issued a new memo, explaining why it was ending the Remain in Mexico policy. But because of a court challenge to the Biden administration's ending of the policy, that ending of the policy right now has currently been enjoined, which means that the policy is on the books but the administration is actively trying to end it. But it's still in the courts right now.
Sabi Ardalan:
And just as of this morning, I think a new challenge was filed based on folks' rights who are being violated under Remain in Mexico. So it's currently a very hotly contested area, legally.
June:
Mm-hmm (affirmative). But, practically, if I am a Haiti asylum-seeker trying to get to the United States to seek asylum, am I getting stuck in Mexico or am I able to get to Texas?
Sabi Ardalan:
So currently, because of Title 42, the public health law that I talked about earlier, that's actually more the gate-keeping mechanism keeping people out of the US. Because folks that are trying to come in are getting expelled from the US, many folks are getting expelled from the US under Title 42.
Sabi Ardalan:
People were put into the Remain in Mexico program once they were actually determined to have an asylum case that was supposed to go forward in the US, in the US immigration court, but were told that they had to remain in Mexico while they waited for their day in court. So those people had actually accessed the US asylum system and were to have a day in court, but were being forced to remain in Mexico.
Sabi Ardalan:
People, right now, are having enormous difficulties even accessing the US asylum system because of Title 42. They're often being expelled without having a chance to have their fear of return screened and heard in US courts.
June:
So who's actually doing the expelling under Title 42? Who's taking those decisions?
Sabi Ardalan:
Customs and Border Protection is at the front lines. And the images that were in the papers of, in particular, Haitians being pushed back at the border. In those photos that I think many people saw, it was officers on horseback from Customs and Border Patrol who were pushing Haitians back and disrupting their access to the border.
June:
So are there active challenges to Title 42?
Sabi Ardalan:
Yes, there is ongoing litigation challenging Title 42. And that case is still pending in the courts.
June:
And what stance has the Biden administration taken on it?
Sabi Ardalan:
I think, currently, the Biden administration hasn't taken steps to stop using Title 42 to push back folks from the border. They're still invoking the pandemic as a reason for needing to have it in effect, despite literally 1,000+ health professionals expressing their opposition to the program and explaining why there are other measures that can be taken to protect public health that don't involve expelling people who need asylum here in the US.
June:
Okay. Sabi, I'm going to give you some enormous powers right now. If you had to give three recommendations to the Biden administration, and the administration's going to do what you say, how should we be handling the crisis at the border? What would your three recommendations be?
Sabi Ardalan:
So, first and foremost, I think the administration should stop expelling people from the border. Allow people to access their rights to seek asylum here in the US, allow them to have their cases heard. And to treat people humanely at the border, to provide them with the shelter and safety they need and that our country can and should provide. The US has a legal obligation to allow people to seek asylum here in the US, to have their day in court, to have their claims heard. And we have a legal obligation not to return people to countries where they face persecution and torture.
Sabi Ardalan:
And we're currently in violation of those obligations when we're expelling people without screening them for fears of return and without allowing them to have their day in court, to have somebody hear why they came here and provide them with the refuge they need. So I think we have a lot of work to do to treat people humanely and with respect, and to allow them access to the legal rights that they have; which is a right to seek asylum here.
Sabi Ardalan:
Two more measures. I think part of it is reconceptualizing border enforcement and the southern border. So there's a lot of messaging around recent arrivals and the need to fortify our borders, preserve our borders. I think there needs to be a recognition of the US's responsibility in creating and contributing to situations that have led people to flee their home countries. And we need to take responsibility for that, acknowledge it and own it. And, in turn, provide protection to the people who need it, often, at least some of the time, because the US has in fact contributed to the circumstances that have led them to flee their home countries.
Sabi Ardalan:
And I think that there hasn't been enough attention to that history and to the circumstances, and to really taking responsibility for situations that the US has contributed to creating. And there's, instead, a real othering and attempt to cast a really negative light on people who really are just trying to save their lives and the lives of their families.
Sabi Ardalan:
So I think that's maybe more of a meta reframing. But I think, with that reframing, a lot of change could come from that.
June:
Why did you get into this very difficult and complex part of the law?
Sabi Ardalan:
So my family got asylum in the US when I was a kid. And I grew up talking about human rights and the need to provide protection to people. And it's part of who I am.
June:
You've been listening to Sabi Ardalan, she's the director of the Harvard Immigration and Refugee Clinical Program. At the clinic, Ardalan supervises and trains law students working on applications for asylum and other humanitarian protections.
June:
Thank you for being with us today.
Sabi Ardalan:
Thank you.