Learning Key Litigation Skills in the Crimmigration Clinic

Lyla Wasz-Piper ’20 and Kaela Athay ’19

By: Lyla Wasz-Piper, J.D. ’20 and Kaela Athay, J.D. ’19

The law school environment can, at times, feel insular and abstract. But supporting a person’s right to stay in the country with his wife and children transforms the theoretical into the practical. Similarly, the law school’s call to act is a lofty goal, but through clinics—and particularly the Crimmigration Clinic—students like us have the ability to take the law out of the classroom and apply our learning to some of our nation’s most pressing issues.

This semester, the Crimmigration Clinic and the Immigrant Defense Project (“IDP”)—an immigrant rights organization focusing on the interplay between criminal and immigration law—co-counseled an amicus brief on behalf of other immigrant rights organizations in support of a petition for rehearing in the Ninth Circuit. The case involved a longtime lawful permanent resident who came to the United States when he was only ten days old, but is now facing deportation because of a minor criminal conviction that is more than ten years old.

As Crimmigration Clinic students we were charged with drafting the amicus brief. We both found drafting the brief an incredibly valuable experience. Although we plan to pursue different legal careers upon graduation, we both learned important litigation skills that we will take with us whether we’re practicing appellate advocacy or providing direct client services.

The legal arguments in the Crimmigration Clinic’s amicus brief were complex but largely focused on the fundamental unfairness of applying a new law to a guilty plea that was entered into while relying on the old law. In this case, at the time of the client’s plea, he had to make a decision: proceed to trial, or craft a plea agreement with the help of his defense and immigration counsel to preserve his legal immigration status in the United States. For many noncitizens, preserving the right to remain in the country is often a paramount concern. At the time of the plea the law seemed clear that the offense would not trigger his removal. Five years later, the immigration appellate court abruptly departed from well-established practice and found that the offense to which the petitioner had pleaded guilty was, in fact, a deportable offense. Applying that change in law retroactively, the petitioner was then placed in removal proceedings where he was ultimately ordered removed.

The petitioner then appealed the removal order up to the Ninth Circuit where a divided panel upheld the lower court’s removal order and reasoned that the retroactive application of the new law was permissible. One judge on the panel penned a strong dissent demonstrating that the panel’s decision misapplied the Ninth Circuit’s own retroactivity law. In support of the petitioner’s request to have the Ninth Circuit reconsider its decision, the Crimmigration Clinic and IDP submitted its amicus brief.

As Crimmigration Clinic students, we worked closely with our supervisor, Phil Torrey, and co-counsel at IDP to develop three main arguments advanced in our brief. First, we argued that it would be virtually impossible for criminal defense attorneys to advise their noncitizen clients about future immigration consequences of guilty pleas if immigration laws could be altered by immigration officials in the future and then applied retroactively. Second, we argued that the Ninth Circuit improperly applied its own retroactivity analysis. Finally, the brief explained that if the test was properly applied, it would weigh in favor of the petitioner and the new law would not retroactively apply to his prior guilty plea.

Researching and writing this amicus brief has been the most challenging and rewarding experience of our law school careers thus far. Participating in a clinic provides a unique opportunity for faculty engagement and independent work: the complexity of the legal work means that you’re constantly learning new skills while working closely with the supervising attorney. The Crimmigration Clinic has allowed us to develop strong mentor relationships, work with a community of students and faculty similarly dedicated to immigration reform, and gain real experience practicing law at such a critical time in our legal and political climate.