There are many challenges to teaching law — learning to understand case law and statutory construction, constitutional analysis, fact investigation and client counseling, just to name a few. But one that doesn’t often get mentioned is understanding the interplay between the political and the legal world.
As a death penalty defense lawyer, I have sometimes been asked what would be the first motion I would file in a case. I answer, not entirely tongue in cheek, “motion to continue this case to an odd-numbered year.” The last thing I want my client to face is a judge or prosecutor running for re-election.
To forget the political world you operate in is foolish and dangerous for your client, no matter what kind of case it is. When I teach criminal procedure, for example, I ask students to not just read the cases, but to be prepared to discuss their historical and political context. Many of the changes in the development of criminal procedure can be traced from the 1960s through the early 1990s and follows a pattern — first looking at minorities as victims, and then, as people to be feared.
Given today’s political climate, nowhere is the interplay between politics and law more salient than in immigration law. To state the obvious, the prejudice characterized in the recent presidential election surrounding immigration policy and appeals to xenophobia was responsible, in large part, for its result. If you are an advocate for a refugee, or represent someone seeking citizenship or asylum, part of the work is understanding the political ramifications of what you are trying to do.
To illustrate this point, let me tell you about a post-election asylum win by the Valparaiso University Law School Immigration Clinic. Two third-year students, Brandon Carter and Chelsea Hillman, supervised by the Immigration Clinic director and professor Geoffrey Heeren, won asylum for an Eritrean man who had been persecuted for his political beliefs. Their client (referred to as J.T. to protect his identity) was an Eritrean citizen, but was born and raised in Saudi Arabia, where his father worked. In Saudi Arabia, J.T. and his father attended meetings of Eritrean expats, during which they sometimes expressed views critical of the repressive Eritrean government. When they returned to Eritrea for a wedding, they were arrested, detained, interrogated about their statements in Saudi Arabia, and tortured. They escaped from detention when a family member paid a bribe. Afterward, they returned to Saudi Arabia, but again faced persecution, this time due to their religious beliefs. J.T. was twice arrested, detained, and beaten by Saudi religious police for practicing Christianity. Eventually, J.T. escaped to the United States.
Chelsea and Brandon assembled substantial documentation to support J.T.’s story, including articles on Eritrea’s extensive international network of spies and affidavits from family members, country experts, a medical expert who documented that J.T. had been tortured, and a psychological expert. While country conditions are important in any asylum request, they become extremely important when we are talking about Saudi Arabia, Eritrea, religion, and political dissent. As a result of Chelsea and Brandon’s hard work and legal skills, their client was able to begin a new life in the United States.
One cannot help but wonder, though, had their client been Muslim and persecuted for those beliefs, would his case have resulted in asylum? Our country’s close ties to Saudi Arabia had to be considered as well. In representing this client, the Immigration Clinic students and their professor had to confront the many stereotypes, prejudices and political realities of the world we live in that can produce a climate of intolerance. It behooves all of us to look at context, to understand to whom we are speaking, and to represent our clients with those political and contextual understandings — not to cause us to be more cautious, but to cause us to be more effective in cases where the interplay between politics and law is a reality.•
• Andrea D. Lyon is dean and professor of law at Valparaiso University Law School. The opinions expressed are those of the author.